An Online Artist Challenges Obscenity Law

By RANDY KENNEDY

Published: July 28, 2005

In a landmark 1973 case, the United States Supreme Court defined obscenity in part as anything that ''the average person, applying contemporary community standards'' would find appealing only to prurient interests. But with the growth of the Internet, a difficult question has arisen: Which community's standards apply in cyberspace?

On Monday in a case brought against the government by a New York photographer, a panel of federal judges in Manhattan declined to answer that question, but the lawsuit could end up providing the Supreme Court with a chance to address the issue.

The case, filed in 2001 by Barbara Nitke, whose Web site includes pictures of sadomasochism and bondage, argues that the Communications Decency Act of 1996, which prohibits obscene material from being distributed on the Internet, is overly broad and violates the First Amendment. Ms. Nitke contends that the law has a chilling effect on artists, educators and alternative-sex advocates because the explicit material they present on the Web could be deemed obscene in parts of the country, even if it is acceptable under community standards in other parts.

''I've had to self-censor images from my Web site, which is very, very disappointing to me,'' Ms. Nitke said in an interview. ''It's impossible to know who's going to find what obscene, so everybody just has to make a guess at where the lines are.''

In the lawsuit she gave examples of more than 1,000 images and pieces of writing that had been kept off the Internet by visual artists, writers and others because they feared prosecution under the act.

The special three-judge panel, in Federal District Court in Manhattan, said Ms. Nitke, who has photographed the sexual lives of sadomasochists since 1994, proved that her own fears of being prosecuted under the law were ''actual and well founded.''

''She has submitted objective evidence to substantiate the claim that she has been deterred from exercising her free-speech rights,'' the judges wrote, and this fear is based on a reasonable interpretation of the law.

But they ruled that she had not provided enough evidence about varying community standards and harm to free speech to prove that the law itself was unconstitutional.

In 1996, in one of the few federal cases to address the issue of cyberspace and community standards, a California couple with a pre-Internet, adult-oriented computer-bulletin-board service was convicted on obscenity charges in Tennessee, where an undercover postal inspector downloaded the explicit material. The United States Court of Appeals for the Sixth Circuit upheld the conviction, determining that the materials were pornographic under Tennessee community standards, even though they would probably not be pornographic under such standards in California.

The Supreme Court declined to hear the couple's appeal, and they served sentences in federal prison.

Ms. Nitke's lawyer, John Wirenius, said he planned to appeal her case, which will probably proceed to the United States Court of Appeals for the Second Circuit in Manhattan.